SB 481 Text

Senate Bill No. 481
(By Senators Sharpe, Boley, Love and Helmick)
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[Introduced March 24, 1997; referred to the Committee
on Health and Human Resources; and then to the Committee on Finance.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-n, relating to medication administration by unlicensed personnel; short title; definitions; administration of medications in facilities; exemption from licensure; instructions and training; eligibility requirements of facility staff; administration; and rules.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-n, to read as follows:
ARTICLE 5N. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5N-1. Short title.
This article may be cited as the "Medication Administration by Unlicensed Personnel Act."
§16-5N-2. Definitions.
As used in this article, unless a different meaning appears from the context, the following definitions apply:
(a) "Administration of medication" means assisting a person in the ingestion, application, inhalation or using universal precautions, rectal or vaginal insertion of medication or subcutaneous injection of insulin under the limitations set forth in section ten of this article including prescription drugs, according to the legibly written or printed directions of the attending physician or authorized practitioner, or as written on the prescription label and making a written record thereof with regard to each medication administered, including the time, route and amount taken, but "administration" does not include judgement, evaluation, or assessments or the injections of medication, the monitoring of medication, or the self-administration of medications, including prescription drugs and including the self-injection of medication by the resident.
(b) "Authorizing agency" means the department's office of health facility licensure and certification.
(c) "Department" means the department of health and human resources.
(d) "Facility" means an ICF/MR, a personal care home, a residential board and care home, a behavioral health group home, a private residence in which health care services are provided under the supervision of a registered nurse or an adult family care home that is licensed by or approved by the department.
(e) "Facility staff member" means an individual employed by a facility but does not include a health care professional acting within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or doctor of osteopathy, a podiatrist, registered nurse, practical nurse, registered nurse practitioner, physician's assistant, dentist, optometrist or respiratory care professional licensed under chapter thirty of this code.
(g) "ICF/MR" means an intermediate care facility for the mentally retarded which is licensed by the department.
(h) "Medication" means a drug, as defined in section one hundred one, article one, chapter sixty-a of this code, to be ingested through the mouth, applied to the outer skin, eye or ear, applied through nose drops, vaginal or rectal suppositories or subcutaneous injection of insulin under the limitations set forth in section ten of this article that has been prescribed by a health care professional authorized by law to prescribe.
(i) "Medication error" means a discrepancy between what the physician ordered and what the designated responsible oversight individual: (1) Observes during an observation of an individual administering drugs to residents in the facility; and (2) a review of the medication administration record.
(j) "Medication error rate" is determined by calculating the percentage of errors. The numerator in the ratio is the number of errors that the responsible oversight individual identifies. The denominator is called "opportunities for errors" and includes all the doses administered plus the doses ordered but not administered. The equation to calculate the rate is:
Medication error rate = Number of errors divided by the opportunity for errors times one hundred.
(k) "Registered professional nurse" means a person who holds a valid license pursuant to article seven, chapter thirty of this code.
(l) "Resident" means a resident of a facility.
(m) "Secretary" means the secretary of the department of health and human resources or his or her designee.
(n) "Self-administration of medication" means the act of a resident who is independently capable of reading and understanding the labels of drugs ordered by the physician, opening and accessing drug containers as packaged by the responsible party, accurately identifying and taking the correct dosage of all drugs as ordered by the physician, at the correct time and under the correct circumstances, to ensure an appropriate reaction to the drugs as ordered.
(o) "Supervision of self-administration of medication" means a personal service which includes reminding residents to take medications, opening medication containers for residents, reading the medication label to residents, observing residents while they take medication, checking the self administered dosage against the label on the container and reassuring residents that they have obtained and are taking the dosage as prescribed.
§16-5N-3. Administration of medications in facilities.
(a) The secretary is authorized to establish a program for the administration of medications in facilities. The program shall be developed and conducted in cooperation with the appropriate agencies, advisory bodies and boards.
(b) Beginning the first day of January, one thousand nine hundred ninety-eight, as a condition of licensure or approval, the authorizing agency shall require that any facility that has unlicensed staff administering medication pursuant to the conditions of this article shall maintain a written record as specified in section seven of this article and shall allow facility staff who are placed on the authorizing agency's registry to administer medication. The record is subject to review by the authorizing agency as a part of its procedure in authorizing continued licensure or approval of the facility: Provided, That facilities which house three or fewer residents are exempt from the provisions of this section so long as medications are being administered in accordance with physician's orders as evidenced by the results of complaint investigations conducted by the authorizing agency.
(c) Supervision of self-administration of medication by staff, who are not licensed health care professionals, is allowable in certain circumstances, when the substantial purpose of the setting is other than the provision of health care such as those facilities indicated in the definition of "facilities".
§16-5N-4. Exemption from licensure.
Any individual who is not otherwise authorized by law to administer medication in a facility may administer medication only after participating in a training program and passing a competency evaluation as prescribed in this article. Any individual who administers medication in a facility in compliance with the provisions of this article is exempt as to that administration from the licensing requirements of chapter thirty of this code and the provisions pertaining to controlled substances contained in section one hundred one, article one, chapter sixty-a of this code. All licensed health care professionals as defined in this article remain subject to the provisions of their respective licensing laws.
§16-5N-5. Instruction and training.
(a) The department, in cooperation with appropriate agencies, advisory bodies and boards, shall develop and approve training curricula and competency evaluation procedures for those facility staff members who administer medication.
(b) A facility that implements a procedure under which its facility staff members may administer medications shall ensure that the facility staff has successfully completed an approved training program and an approved competency evaluation.
(c) A registered nurse who is authorized to train facility staff members to administer medications in facilities shall:
(1) Possess a current active West Virginia license in good standing to practice as a registered nurse;
(2) Have practiced as a registered professional nurse for the immediate two years prior to being authorized to train facility staff members to administer medication in facilities in a position or capacity requiring knowledge of medications; and
(3) Be familiar with the nursing care needs of residents of facilities as described in this article.
(d) The curriculum of all programs for training facility staff to administer medication must comply with applicable rules and receive approval from the authorizing agency prior to implementation.
(e) Facility staff members must annually complete a specified update of medication-related training and must pass a competency evaluation which has been approved by the department. This training may occur in the facility and the facility shall provide annual recertification information to the authorizing agency.
§16-5N-6. Eligibility requirements of facility staff.
(a) The facility shall provide to the authorizing agency a list of the individual facility staff members who may administer medications. The facility may permit a facility staff member to administer medications in a single specific agency only after compliance with all of the following:
(1) The staff member has successfully completed a department approved training program and competency evaluation;
(2) The facility determines there is no statement on the state administered nurse aide registry indicating that the staff member has been the subject of finding of abuse or neglect of a long-term care facility resident or convicted of the misappropriation of such a resident's property;
(3) The facility staff member has had a criminal background check or if applicable, a check of the state police abuse registry, establishing that the individual has been convicted of no crimes against persons or drug related crimes;
(4) The medication to be administered is received and maintained by the facility staff member in the original container in which it was dispensed by a pharmacist or the prescribing health care professional; and
(5) The facility staff member complies with all applicable requirements established under this section, the rules adopted pursuant to this article and such other criteria, including minimum competency requirements, as are specified by the authorizing agency.
§16-5N-7. Oversight of medication administration by unlicensed personnel.
(a) Each facility in which there is medication administration by unlicensed personnel shall establish in policy an administrative monitoring system. Monitoring is to be performed by a registered professional nurse employed by the facility or in those facilities in which a registered professional nurse is not employed, by a designated administrative staff person, who has been trained and certified in accordance with the provisions of this article.
(b) Each facility must use a delivery system that is approved by the authorizing agency.
(c) Each facility must maintain the following medication records for review by the registered nurse, the administrative designee so assigned by written policy or other authorized persons:
(1) The name of the resident to receive the medication;
(2) The name of the medication, the dosage to be administered and the route of administration;
(3) The time or intervals at which the medication is to be administered;
(4) The date the medication is to begin and cease;
(5) The name of the individual who administered the medication;
(6) Any special instructions for handling or administering the medication, including instructions for maintaining sterile conditions and appropriate storage; and

(7) One or more telephone numbers at which the health care professional who prescribed the medication can be reached in an emergency and the telephone number of another health care professional who should be contacted if the prescribing professional cannot be located.
(d) In each facility there shall be available information on all drugs being administered in a facility, their risks and their possible side effects.
§16-5N-8. Decertification of facility staff members.
The department may withdraw approval for a facility staff member to administer medication if a nurse or the administrator determines that the facility staff member is not performing medication administration in accordance with the training and written instructions. The withdrawal of the right to administer medication by unlicensed personnel shall be documented and shall be relayed to the department in order to remove the facility staff member from the list of certified individuals.
(a) Facility staff members who are identified by the oversight nurse or administrator or through a survey process to have a medication error rate of greater than five percent of all medications administered by the facility staff member shall be removed from the departmental registry upon written notification by the facility.
The significance of medication errors shall be considered and determined based on resident condition, drug category and frequency of error and shall be considered in determining error rate and may result in immediate and final removal of an individual from the list of certified individuals.
(b) To be recertified as a facility staff member who can administer medication, a facility staff member must successfully complete an approved training program and the competency testing.
(c) If the facility staff member is found to have a medication error rate of greater than five percent of all the medication administered by the facility staff member after retraining on three consecutive episodes, the facility staff member shall be permanently removed from the registry.
§16-5N-9. Fees.
The department shall set and collect fees for any training for and any competency evaluation administered under the provisions of this article, whether the department administers such evaluation, contracts for such evaluation or the evaluation is provided by a private provider or facility, so that the revenue generated from such fees will partially offset the costs incurred by the department in the performance of its duties under this article. No person may be placed on the certified medication aide registry as established by the department unless they have successfully completed the training and the competency evaluation and made the required payment of the appropriate fees, as established in rules, to the department.
§16-5N-10. Limitations on medication administration.
The following limitations apply to the administration of medication by facility staff members:
(a) Injections or any parenteral medications may not be administered: Provided, That insulin may be administered if the facility staff member administering the insulin injection has received specific approved training in that administration by a registered professional nurse, physician or pharmacist and has been approved in writing by the registered professional nurse, physician or pharmacist and the insulin is prescribed in a stable dose with identified times for administration;
(b) Irrigations or debriding agents used in the treatment of a skin condition or minor abrasions may not be administered;
(c) No verbal medication orders may be accepted, no new medication orders shall be transcribed and no drug dosages may be converted and calculated; and
(d) No medications ordered by the physician or a health care professional with legal prescriptive authority to be given "as needed" may be administered unless the order is written with specific parameters which preclude independent judgment.
§16-5N-11. Rules.
The department shall propose any rules as may be necessary to implement this article; the initial rules are to be submitted on an emergency basis. The rules shall be proposed in accordance with the provisions of chapter twenty-nine-a of this code.

NOTE: The purpose of this bill is to permit the restricted administration of medications by unlicensed personnel in intermediate care facilities for the mentally retarded, personal care homes, residential board and care homes, behavioral health group homes and in private residences in which health care services are provided under the supervision of a registered nurse.

This article is new; therefore, strike-throughs and underscoring have been omitted.

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